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Gay immigrants need asylum from persecution at home

It's that category that applies to Sam and Kassandra and other immigrants who are gay, lesbian, bisexual or transgender. In 1994, then-U.S. attorney general Janet Reno determined that homosexuals were "a particular social group" by designating as precedent a 1990 case in which a gay man from Cuba won asylum based on the fact that the Cuban government had sentenced him to a forced labor camp as punishment for being gay. That ruling paved the way for future cases.

But asylum claims based on sexual orientation are not always clear-cut, especially when the facts get tangled up in bias.

In 2009, the Denver-based U.S. Tenth Circuit Court of Appeals slapped the wrist of Denver immigration judge Donn Livingston for denying asylum to a gay man from Morocco because, according to court documents in the case, Razkane v. Holder, his "appearance does not have anything about it that would designate [him] as being gay. [He] does not dress in an effeminate manner or affect any effeminate mannerisms."

Kassandra faced a hard life in El Salvador.
mark manger
Kassandra faced a hard life in El Salvador.
Bryon Large can relate to his clients.
mark manger
Bryon Large can relate to his clients.

Livingston also noted that the man, Razkane, who entered the United States on a visa obtained through the Fulbright Program, hadn't had any boyfriends in Morocco (though he did "engage in homosexual conduct" in the United States, according to court documents). So, Livingston reasoned, it was unlikely that if Razkane were sent back to Morocco, where homosexuality is illegal and merely flirting with a man can get you thrown in prison, he would engage in "the type of overt homosexuality that would bring him to the attention of the authorities."

In other words, Razkane wasn't openly gay enough.

The appeals court called Livingston's assessment "homosexual stereotyping" and reversed the decision. "Such stereotyping would not be tolerated in other contexts, such as race or religion," the court wrote. "Nor will it be tolerated in the case of a homosexual applicant."

But the court stopped short of criticizing what some attorneys and legal scholars say is a dangerous precedent set by the United States Board of Immigration Appeals called "social visibility." In 2006, the BIA, which is based in Virginia and hears every immigration appeal case in the nation (including Razkane's, in which it agreed with Livingston's decision), found that immigrants seeking asylum because of their membership in a particular social group must possess characteristics that are both "highly visible and recognizable by others in the country."

The 2006 case in question involved a Colombian man who was afraid to return to his country because he'd told the government inside information about a powerful drug cartel, and the cartel had come after him and his family. The BIA ruled that non-criminal informants are not a particular social group, in part because their conduct is secret and "out of the public view."

While understandable in some instances, experts say that line of thinking has been adopted by asylum officers and immigration judges around the country — and has proven dangerous when it comes to GLBT asylum cases. Some adjudicators, they say, have begun to define sexual orientation by a person's acts and not as an immutable characteristic.

"In many ways, a gay man or a lesbian or a transgender person, their sexual identity is defined by their behavior, and it can arguably be completely avoided," says Fadi Hanna, a lawyer in New York City who has written about social visibility. "You don't 'need' to have a boyfriend or a girlfriend." But, he adds, "Asking someone to avoid those things is effectively asking them to not be who they are. It's not reasonable." And, he says, a judge shouldn't expect it of them.

Denver immigration attorney Bryon Large agrees that social visibility is a problem — especially with regard to gay immigrants from homophobic countries who were forced to hide their identities. "While I certainly can understand the reasoning behind it in a lot of ways, it's very dangerous, because there are certain groups that are not socially visible," he says.

It's less of an issue, Large and others say, with immigrants who are transgender, especially if they didn't transition from male to female, or vice versa, until they came to the United States. It would be very visible to friends, family members, neighbors and the police if, for example, a person left their home country as one gender and returned as another.

*****

Growing up in the capital city of San Salvador, Kassandra was poor. Her father was an alcoholic. Her mother worked in a pharmaceutical factory to support Kassandra, her older sister and two older brothers until she became ill and had to quit. Making money became the children's responsibility. At eight years old, Kassandra began selling tickets to fairs traveling through town. When there were no fairs, she and her siblings sold bread and salsa in the street.

"We didn't have anything," she says.

Sometimes, to eat, the children would steal the avocados that grew in the city.

Difficult already, Kassandra's life got worse after she was raped. "I always hoped my body would desire physical attraction or sex with a man, but it came very early," she says. "Somebody made that happen much sooner than I was ready for it."

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My Voice Nation Help
88 comments
T R
T R

And yes you hating gay people, are you pure? do you go by the religion 100% I don't think so....Look into yourself how many times and when was the last time you did something against your faith, mmmm you know many times right? and very recently....There are millions of GLBT people out there in this world! Waw is God blind or powerless? Why hasnt He killed them all yet?....As for me, my God teaches love and helping the others not hate. You religious people are so ignorant and have issues that's why we still have people taking advantage of your ignorance for their own agendas...Wake up we are not in medieval ages anymore it's 2011 and yeah 650 tonnes can fly now over the pacific from Sydney to LA bitches....

Maryanshaver
Maryanshaver

I am almost 70 years old, and I still don't understand why GAY is so scary to a lot of people. Isn't it more important that you love someone and don't want to cause them pain than it is the sex of that person. PLUS I heard a commediane say why not have gays marry, they should be able to be miserable like the hetrosexual marriages many times are. It isn't a joking matter, but don't we haveeconomic chaos, floods, tornadoes etc, to worry about. Yet, I think people put way too much importance on the sex part ant not enough on the just the every day living with another person part. To every hetrosexual married couple, how would you like your whole life with your partner whittled down to sex alone. Demeaning isn't it.

Tlmartinusa
Tlmartinusa

All those years under your belt and your head is where it's dark. What a shame

joe n
joe n

there are true valuable people out there suffering from political reasons .....instead of helping those we are offering shelter to weirdos and freaks ....typical

Juansalvadorneyra
Juansalvadorneyra

I'm sorry but we have too much gays and lesbians in america ; enough it's enough; please no more .Please read the bible ; God condems Gays and Lesbians ; think about!!

T R
T R

Send me a quote from the bible where jesus condemned gay people!

K. Lyn Baker
K. Lyn Baker

I'm sorry, but we have too much religion in America; enough is enough; please no more.

Jerry Merci
Jerry Merci

Ha! Do you read your bible? do you know the part that say's who ever hasn't sinned cast the first stone. Or, what's the other, look at yourself first before looking at others' filth. Or the fact that the bible was written for the old churches back then by a guy who was prison.

To know the truth about the bible you need to learn it's proper history and not the biased history that you were told. If you were to live by the bible's code of conduct you wouldn't last a day.

Tlmartinusa
Tlmartinusa

Since you claim to know so much about the Bible you should reread the old testament where GOD executed gays. Do you remember Sodom and Gomorrah?

Moonin1366
Moonin1366

No its people like you, full of hate and that judge others! Who are You ???!!!God made everyone!!!! And thank God He didn't make everyone like you !

Warheit
Warheit

moonin is the idiot, god is imaginary, just to assist in feeding the parasites, and personal comfort, to give resolution (people think), for wrong doings, so they can sleep at night.

Legal immigrant
Legal immigrant

As a LEGAL immigrant period, I just find there's so much sympathy out there for all the illegal aliens (and I feel sorry for their plight), but I've been here 5 years with at least another 5 to go before I get residency (even though i've been approved), that's another 5 years of living in limbo - a total of 10 years of living in limbo. Never broken the law, bought a house, employ Americans, doing all the right stuff, but no one cares, and there's 100's of thousands of us in what is known as the "endless wait". How about a story on LEGAL immigrants and our difficulties?

Bootcamp808
Bootcamp808

I am gay and I understand what she is going through. But my observation is that there are way too many people in this country who do not want to be Americans, they do not want to speak the language that unified us as a people. Send her back home just like all of the other people who are in this country illegally. Let her learn English in El Salvador and apply for residency here through legal channels. Enough is enough for illegal immigrants.

Gmvte1
Gmvte1

So does this mean that gay Americans that have had a hard time in life shouldn't have to pay their traffic fines too? It's been a week that this new angle to get Americans to believe that only Americans should have to obey Americans Laws. Turn the page!

Brad
Brad

Only God can free them from this bondage. Not the USA.

Vasyafit
Vasyafit

This is getting lame, we can see that Westword is very pro gay, but why is Yahoo showing it over and over. America is not a lifeboat, people solve your own problems in your own country. This is 2011. I am not a conservative or liberal, I am a realist and just because people are gay doesnt give them extra rights. Being gay is a life choice, a sexual preference, period. Stop comparing being gay as being black or a woman in the 19th century.

Korcyra
Korcyra

If being gay is a choice, then you must know from experience. If you are straight...when did you decide about THAT?? And change that if you're able.

Tlmartinusa
Tlmartinusa

Go away. This is liberal BS.

Korcyra
Korcyra

It's liberal BS until you're the one in need, isn't it?

guest
guest

Not that I wish any harm on the gay community they should be able to live free. The problem is we need to stop using the United States as a free for everyone that is why we are in the cluster fuck that we are in now people need to stay in their own country and fight instead of depending on the US

Korcyra
Korcyra

There's tons of room here for more people...Americans are greedy, and spoiled.

Kat
Kat

Good luck Sam! You deserve to be here and be free from fear!

jackass1
jackass1

deserves to be here????? because its gay ? dont be so stupid you ignorant stain

guest
guest

Charity will come back to you as you have shown it to others.

Negative-rights for all
Negative-rights for all

Notice where the hateful comments are coming from? I cannot wait for the religious cancer to be purged. The desert religions have caused unimaginable destruction and grief since their inception. Stand against them.

Tlmartinusa
Tlmartinusa

You are the anti religious cancer that will ultimately ruin our country.

Beavis
Beavis

Nice intolernce & hate. Your as bad as they are.

Bill
Bill

Enough quiet, out law fags! In this case deport the screwed up demented outcast of a foreign nation. Return him, sounds like they were working on a good treatment for his rehabilitation send :o) Along, from his post it would do him or her a world of good. for all fags and queers thought I could not tell you the difference in them may aids creep up your ass! I would enjoy the show. No asylum For any sexual deviant, this means queers and fags or any other definition you have for there sick demented unmoral types. The one sin that God hates more than any even murder is sodomy. Burn baby burn, the hell you face is your own making.

Korcyra
Korcyra

Be careful that the hell you speak into existence isn't your own doing.

Bill
Bill

Just what America needs more queers in America as if we don't have enough dysfunctional humans here we import the scum of other nations, for those worried about bigots, not so much bigots as those that appose your twisted Ideas of morality, attack our churches and all that made this country great, it is you and your mentality that is steadily bringing America from the top down. The majority of America is against your butt crazed dysfunctional perverts. I for one feel it should be a capital crime to allow any queer near our schools especially to attempt to rationalize your perverted actions as normal, your sick and twisted, immoral and plain filthy, I for one say we do not need to or have to patronize you or your actions. You are sick, there is no other answer. there is nothing natural about you. Sorry about not being so politically correct but I believe there should be no political correctness in this issue! Look at your sorry state, demanding preference in jobs, and other privileges why because your perverts! This nation has sunk to a new low. and it is your kind which has done so. I for one say to hell with political correctness. You should not be allowed to spread your filth any further. It is not Americas job to take on this filth! I for one refuse to support them in any way. Clean this great nation up get the filth from higher offices and begin to again rebuild this nation. Liberal agenda has all but destroyed it, Politically Correct is one of the Liberal agendas, Liberal is anti American! Queers and there supporters are Un American! Sick Sick perverted deranged peaces of human scant left along history's path. I thought Aids was Gods blessing to us who are straight against your filth until your sick kind brought it in to our group as well, nothing fit better then to watch a queer die a little each day! Sick Bastards!

Korcyra
Korcyra

Gay people come into existence because "nice heterosexual folks" like yourself keep reproducing, so extend some real logic here, and you can stop gay people (and throw in some bisexual, transgendered and intersexed ones too! Might as well have some fun!) from "happening" when you stop having sex and making babies. Funny that! There are GLBTI people in every culture throughout history from the beginning of recorded history, and it is even found in nature outside of humanity, and yet we get people who try to "whitewash" the history books, censoring those things out according to the whims of their own petty and personal prejudices. Like this really needs explaining in the 21st century, but apparently the need persists!

Korcyra
Korcyra

Sick, dysfunctional human? Look in the mirror lately? Where's all that hate really flowing from?

Strapshoechris
Strapshoechris

Visualising the end of Catholocism and the rest of the bigoted Christian "Churches".God bless agnosticism-Chris.

Negative-rights for all
Negative-rights for all

Here here! Praying to God as we speak that she exorcises the demons disguised as christians.

human
human

I think I would like to ship some of the bigots posting overseas.

EveryoneIsGod
EveryoneIsGod

I wish they would have added some information about what we could do to help them.

MTILLOTSON
MTILLOTSON

I SEEM TO REMEMBER POOR ,TIRED,HUDDLED MASSES,I DON'T EVER REMEMBER SEEING CRIMINALS,PSYCOLOGICALLY CHALLENGED SEXUALLY DEVIANT BEING ON THE STATUE OF LIBERTY

Korcyra
Korcyra

Seems to me like "poor, tired, tired, huddled masses" didn't exclude anyone, did it? We sit on an entire nation of "land stolen from the American Natives" by bigoted european settlers who couldn't see that their dung stunk too! We have all come from somewhere else at some point, so who are you to say who can come and who can stay? Have you owned that one lately?

Chris
Chris

Kassandra: I am happy you are able to remain here in the United States. I do wish that Sam could have stayed as well!

Turnerf77
Turnerf77

Get this gay crap off of my yahoo page. It's been on here for three days. Surely, there must be more important news than this garbage.

Bill
Bill

a faggot is a faggot and we have enough sick faggots here of our own making, we don't need to import any more of the child molesters into the country. Anoter food stamp welfare burden for the American tax payer to support as it spreads its diseased ass all over the country, Gays are a sick side of our society which should have been eliminated, At least this one will not be producing litters of kids it cant pay for like its other illegal invaders coming with it. Unless it as its kind finally figures out it has a dick and starts raping the little girls in the neighborhood as so many other illegals have done. Close the border! deport all illegal invaders, make anchor babes the citizens of there mothers country! Change our laws so first generation immigrants have no social services or government support! If they cant support them selves and family back they go! Enough burden on American tax payers when there are not enough jobs to go for the Legal Americans here! I for one refuse to pay for there litters or there presence in America! As for the foreign fagot ??Bitch that came in, thinking her /his ass hole was a pussy he needs to go back as well. Let his country of origin deal with his sickness! They are all sick mentally ill perverts! I don't buy any of there shit. I for one don't buy any of there but I cant change this crap, and I don't care. the further they are away from me and my children the better it is, No I do not have to tolerate there perversion!

Korcyra
Korcyra

Why don't we deport you into some of these countries and see if you can survive?

:o)
:o)

You are a sick person who need mental evaluation. Seek psychiatric help immediately, you pose a harm to yourself and those around you. Your thought process is all wrong and I shouldn't have to pay for your rehabilitation withthe taxes I am supposed to pay, but your are in dire need and will make an exception.

Bill
Bill

The need for help seems to be on your side. supporting these sick fags, No my dear if intervention is needed it is on your behave and in truth aren't you all ready sucking the government tit some where. Well at least you pay taxes, but the question is from who's stolen identity. My thought process is fine and what is needed for this fine country to recover. yours is dragging it down. Rome had your process of thought in its very last days. I fear there is no help for you, don't bother wasting the money for rehabilitation. For you there is no help. but maybe by just ending it all it will save you from years of suffering, Aids bite you in the butt yet? just sort of a pun to the point!

Korcyra
Korcyra

And we're back to that same old line of thinking that your problems are always someone else's fault...gimme a break already...own your own life and leave things alone that are none of your business.

Rico
Rico

Slow news day in Denver.

 
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